In brief

The case of Vanriet Development Pty Ltd v Brisbane City Council [2021] QPEC 17 concerned an application by the Brisbane City Council (Council) to the Planning and Environment Court of Queensland (Court), which challenged the jurisdiction of the Court to hear an appeal filed by the Applicant in relation to an infrastructure charges notice (Appeal). 

The Appeal was based on the following two grounds under Schedule 1, Table 1, Item 4 of the Planning Act 2016 (Qld) (Planning Act):

"(a) [T]he [infrastructure charges] notice involved an error relating to—

(iii) an offset or refund; 

… 

(d) …[T]he amount of the charge is so unreasonable that no reasonable relevant local government could have imposed the amount.". 

The Appeal sought that the Court fix the amended infrastructure charges notice offset amount to $400,000.

The Council submitted that the Court did not have jurisdiction to hear and determine the Appeal because section 229(6)(b)(ii) of the Planning Act stated that "…an appeal against an infrastructure charges notice must not be about…for a decision about an offset or refund…the cost of infrastructure decided using the method included in the local government charges resolution.

The Court held that the Appeal concerned the value of an offset determined using the before and after method stated in the Council's charges resolution for the establishment cost of the dedication of a part of the Applicant's land the subject of a development approval for a high impact industry and warehouse development (Approval). 

The Court rejected the Applicant's "bootstrap" approach, which alleged that the Council must not have applied the before and after method of valuation, because if the Council had, the Council's valuer and the Applicant's valuer would have arrived at the same figure for the offset amount. 

The Court held that the fact that valuers may adopt a different rate per square metre does not, of itself, reveal an error relating to an offset or refund. 

The Court held that there was no evidence to conclude that the Council's reliance on the valuation of its valuer was affected by error or so unreasonable that no reasonable relevant local government could have imposed the amount. 

The Court held that because the Appeal related to an infrastructure charges notice involving a decision about an offset or refund, where the appropriate method prescribed in the Council's charges resolution was adopted and applied, the Court did not have jurisdiction to hear the Appeal. 

The Court observed, in obiter, that despite the Court not having jurisdiction to hear an appeal of the kind described in section 229(6)(b)(ii) of the Planning Act, other avenues of challenge may be available to an Applicant, including seeking a declaration and consequential orders under section 11 of the Planning and Environment Court Act 2016 (Qld) or by way of judicial review, where a figure is so unreasonable that no reasonable local government could have adopted it. 

Value of the establishment cost of the Land Dedication is in issue 

The Appeal concerned a condition of the Approval, which required the provision of trunk infrastructure for the transport network by way of the dedication of a part (1,423 m2) of the land the subject of the Approval (Land Dedication). 

The Council, using the before and after method of valuation prescribed in its charges resolution, originally assessed the value of the establishment cost of the Land Dedication at $153,696. This figure was revised to $250,000 at the Applicant's request for review, after which the Applicant sought a further review, which Council referred to an independent valuer who assessed the value at $235,000 (at [3]).

The Court held that the controversy before it clearly related to the value of the establishment cost of the Land Dedication (at [8]).

Valuers can arrive at different rates per square metre 

Relevant to the assertion by the Applicant that there was an error in the Council's valuation was the Applicant's allegation that the valuer engaged by the Council did not properly apply the before and after method of valuation, because if the correct method were applied the figure of the Council's valuer would have also been $400,000. 

The Court held (at [13]) that the allegations of the Applicant were "…in truth,…simply…that the valuation relied on by the Council must be wrong because it doesn’t accord with the valuation prepared on behalf of the [Applicant].

The Court observed that each valuer, after conducting their relevant investigations, adopted a different rate per square metre, which inevitably resulted in each valuer attributing a different value to the Land Dedication.

The Court described the Applicant's position as a "bootstrap" approach, which could not be accepted. 

The Court held that the adoption by valuers of different rates per square metre did not, of itself, reveal any error relating to an offset or refund amount. There was no evidence before the Court, which supported a finding of error or the misapplication of the before and after method (at [13]). 

Unreasonableness requires more than differing valuations to be satisfied 

Addressing the Applicant's allegation of unreasonableness, the Court relevantly held (at [14]): 

"…[T]here can be no basis for concluding that the valuation relied on on behalf of the Council was so unreasonable that the only inference open was that the before and after valuation methodology was either not adopted, or if it was, it was so grossly misused that it could not be properly said to be such a method of valuation. What the [C]ourt has before it is simply a difference of opinion about the valuation of the land based on the adoption of different dollar rates m2.

Method in charges resolution used, therefore the Court does not have jurisdiction to hear the Appeal 

The Court held that for the purpose of the limitation on its jurisdiction under section 229(6)(b)(ii) of the Planning Act there was no evidence which indicated that the before and after method prescribed in the Council's charges resolution was not adopted and applied, and therefore, the limitation in section 229(6)(b)(ii) of the Planning Act prevented the Court from hearing the Appeal. 

Conclusion

The Court held that the Appeal related to an infrastructure charges notice involving a decision about an offset or refund, where the appropriate method prescribed in the Council's charges resolution was adopted and applied. Therefore, because of section 229(6)(b)(ii) of the Planning Act, the Court lacked jurisdiction to hear and determine the Appeal. 

In obiter, the Court noted that despite it not having jurisdiction to hear an appeal of the kind in section 229(6)(b)(ii) of the Planning Act, other avenues of challenge may be available to an Applicant such as seeking a declaration and consequential orders under section 11 of the Planning and Environment Court Act 2016 (Qld) or by way of judicial review, where a figure is so unreasonable that no reasonable local government could have adopted it.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

Related Articles

Planning, infrastructure and environment

Supreme Court of Queensland dismisses an application for the disclosure of advice prepared by a barrister for his client, which was referred to in correspondence to encourage the other party to the dispute to accept an offer of settlement

The case of Habermann v Cook Shire Council [2021] QSC 101 concerned an application by the Applicant to the Supreme Court of Queensland for an order that the Respondent disclose advice given by counsel for the Respondent to his client.